Brown water Jim is showing off his brand new Victor “single shot” deer rifle. I say rifle loosely as it’s steel spring is made from old rifle barrels. Never one to obey deer season time strictures, he’s experimenting with new techniques now in light of what is purported to soon be an Obama gun grab. While we understand his concerns about having to relinquish his older style of hunting, this seems to be taking it to the extreme. On the other hand, he may have something here.
Check this out. It’s too cool for school. Member Tombo sends me this today. It’s hard to conceive of Chicago coming up with this. Because they didn’t.
Thank you Ned and Richard for not immersing the dog tags in urine or desecrating our flag to make a statement. This was tastefully done.
Member Jimbo sends us this classic compendium of the dreadful Global Warming in pictorial format. While it has nothing to do with Veterans issues, I fell in love with the squirrel (#3). We have the red flyers here at our house. They’re fearless and very friendly.
I’m sure there’s a politician to blame for it but we don’t do that here. In Olympia, Washington yesterday there was a protest against Global warming as well. The 60+ protesters formed a human word with their bodies that said “No More Coal”. After posing for numerous pictures, they then dispersed to their gas-fired, internal combustion-driven vehicles and proceeded home to the four corners of Washington. Some stated they traveled from as far away as Portland, Oregon because they are truly committed to the cause. So much for saving the planet.
Richard emailed and we’re on for another stab at it tomorrow– Sunday– at 1600 Hrs on the Wacky West Coast, 1700 in the Rockies, 1800 in the Flat earth zone and lastly, 1900 at Stardust’s HQ. Call in and find out about Hugfest. Better yet, call and tell me about Hugfest because I don’t have a clue other than I was told to bring plenty of #2 Mepps spinners and some pork rind.
As some recall, we had a bit of a problem with the servers for Stardust and the show didn’t materialize last Sunday. Hopefully the VA won’t pull the wire on the microphone again.
Here’s a link to last week’s show that tells all.
WGM informs me that Gilead’s latest foray into bug juice is turning up some workable numbers. As usual, the press release is notable for what it doesn’t reveal. That always concerns me.
An example:
The above in blue means nobody is liable to keel over after eating it like WGH and I are prone to. What also surprises me is that Genotype 3, usually one of the easiest to overwhelm, has the poorest response rate of all.
I’m still betting on DRACO. My AIH is kicking ass and taking names with me right now. Between that and the dragon, the going’s a little rough.
Bug juice for seniors
Here’s some more lovely VA pablum that will need a glass of water to digest. From LawBob in the unemployment capitol of the world (Michigan).
I’m currently looking at my two claims on Ebenefits filed on 8/14/2012 at Seattle VARO on another tab. The stated estimated completion date is from 8/16/2013 to 4/15/2014. My tortured math tells me that is between 367 to 604 days. Perhaps they stopped the graph at August 1st to avoid having to revamp the statistics and completion dates.
America’s next batch of Vets
The FCC has recently modernized and reformed the Lifeline program but still makes it too hard for homeless veterans to get and keep a free Lifeline cell phone.
Briefly, the Lifeline federal benefit program has subsidized landline phones for low-income people for a number of years. A household could apply with proof of low-income or participation in a federal program such as a VA pension (some states). In most states, the income must be less than 135% of the Federal Poverty Level (FPL). In 2012, that would be folks scraping by on $15,079 for a household of one; $20,425 for a household of two in the 48 states (higher in Alaska and Hawaii).
The FCC rule-makers insult homeless vets in a 2012 report. In paragraph 486, they write (emphasis mine):
The Veterans Homeless Initiative Office, a division of VA, suggested that we include homeless veterans programs as qualifying eligibility criteria. Our rules for demonstrating income eligibility require the subscriber to provide documentation such as an income tax return or current income statement from an employer to establish income is at or below 135 percent of the Federal Poverty Guidelines. The rule does not address, however, situations in which the consumer has no income at all, and therefore lacks any such documentation. We seek comment on measures that would enable veterans who lack any income, but are not otherwise enrolled in a qualifying program, to demonstrate eligibility for Lifeline. For instance, should a low-income consumer that lacks any income be permitted to sign a certification under penalty of perjury that he or she has no income, with some form of additional certification from an authorized VA official, such as an outreach worker or program coordinator, that the person in question is a homeless veteran or at risk of becoming homeless? Given the unique difficulties in verifying transient and homeless Lifeline consumers’ eligibility, are there any additional measures that should be implemented in situations where an eligible veteran has no documentation of income eligibility to minimize waste, fraud, and abuse while ensuring Lifeline access?
Under the Bush Administration, cell phones became eligible for the subsidy but a recipient applicant had to have a permanent address. But while the FCC’s reform now allows a temporary address (ex. shelter, nursing home) to be used by a homeless person, that address still has to be certified every 3-months whereas someone with a permanent address has an annual certification. If the phone isn’t used at least once every 60 days, it’s deactivated.
So just what is this free government largess? Well, a low-income person can get a free basic (no camera/smart phone) phone, 250 minutes, and 250 text messages per month from Assurance (Virgin); Safelink (Trac phone); Reach Out (Nexus).
Let’s see. That’s 4 hours and 16 minutes a month. Or about an hour a week to talk to a family member, a friend, or make an appointment. A little comfort and security. I’m good with it. FCC to disadvantaged veterans: “Thank you for your service but we’d rather you were–completely–invisible and voiceless.”
FCC to disadvantaged veterans: “Thank you for your service but we’d rather you were–completely–invisible and voiceless.”
It’s the acronym’s acronym. Yep. vA has an acronym page to look up acronym’s. I guess you can not look up the acronym unless you know the “look up” acronym, VIRec. Only in the vA world does this stuff happen.
Ed. note: They have so many they need a web site just to decipher them all!
When we survey our Veterans fiefdom for judicial uniqueness, we notice that in spite of what is described as a Veteran-friendly environment, we often manage to end up on the wrong side of it. 85% of you, to be exact. That’s the beginning statistic. It is becoming more and more apparent from Vet’s we survey that the cattle drive to denial is far easier to “grant” than service connection. Very simply, it is easier to stare at the ceiling than the file in front of you. It’s easier to not connect the dots than the obverse. Results? More claims “completed” and accuracy stumbles to record lows of 35-40%. The cattle are moving and statistics are proving the backlog is deincreasing slightly, imperceptibly.
One thing we cling to in our humble journey though this is discovering a mistake. Not a little “We forgot to read him his VCAA rights but it was not prejudicial”. I’m talking an 81 mm magnesium flare mortar on a dry lake bed in the middle of nowhere-at night. My C-file before the Court of Veterans Appeals is eight volumes and 3715 pages long. Trying to find something incriminating is akin to the proverbial needle in hay. Going through each document is droll work but here it exposed a twenty four year old mistake with no question as to the blatant illegality.
In 1989 when I filed, I assumed they had all my medical records, including my “off-road” records at far away Lima Sites and remote Operating Locations (OLs). All of us in the Air Force would. We were very civilized in the 60s and 70s and prided ourselves on keeping track of their health and welfare. Once it was ascertained that they didn’t have a lot of them (95%), I requested what would now be called a DRO hearing. Back then, it took almost, gee two and a half months to get one.
I got to see my SMRs for the first time (no copies for me) and there it was-or more precisely-wasn’t. No civilian hospital records of anything. I promptly submitted the address with my testimony and the transcriber dutifully noted it in the record. End of search. When they issued my Supplemental Statement of the case, they made no mention of the records- just a simple “Sorry, Nod but we cannot grant.” Obviously they had made no effort to assist in finding these records. I immediately contacted the hospital half way around the world in northwest Thailand person to person for $135.00 and in my best Thai asked for my records.
A week later a photocopy of one page came back showing my hepatitis (which I wasn’t claiming) and an X ray request for left hip dated 3 months after my injury(s). Here is where the VA made a clearly and unmistakably erroneous finding. These are rare because VA is usually careful not to leave incriminating evidence in your C-file. I received my very own copy in 2009 and the below wasn’t in there. Nevertheless, the Record Before the Agency, known as the RBA clearly reveals it. While digging through it page by page I spotted this and shared it with LawBob.
Sure enough, in smoking black and white, on the 25th day of February of 1991, some dingbat decided that just because I had submitted some”private medical records” (PMRs) from a voodoo hospital written in Thai, that they did not constitute their definition of evidence (forever). That is a “finding”. Yet the VA has recognized those very same records as having established that I had hepatitis in service 18 years later. That is a “finding”, too. VA cannot have it both ways.
Notice I’m Mr. Nod. No rank then. Everyone was Mr. Bill and Mr. John or Pilot Ralph. Life off the beaten track was far different in 1971. Uniforms were rare.
This is the conundrum of a VA “finding”. WGM can tell you all about a finding. Once they found out his HCV was from willful misconduct (picking up an STD) they denied. Once it was established that it was in bad taste (but not willful misconduct) to have contracted this, VA was still inexorably stuck with their finding- that the STDs were the culprit and that it occurred in service. What it was NOT was clearly and unmistakably erroneous to find that he was infected during service so that part had to stay in the record. This is called Openmouth Insertfinding disease. VA couldn’t suddenly NOT find the HCV was SC but rather due to sitting on dirty toilet seats after service. They had spoken, and unless the VA examiner wanted to fall on his sword (and he didn’t), WGM was now SC by a CUE TKO.
Similarly, here, VA has made a finding that the PMRs are not evidence of a disease or injury in service- albeit in 1991. Both are evidence of what was described as clearly and unmistakably erroneous in Gilbert. This is an extremely high hurtle to get over. After you establish that it happened, you are obligated to prove that it manifestly changed the outcome of your decision. WGM’s was rather cut and dried. Mine was an arbitrary decision to exclude legitimate evidence from the record and someone in power signed off on it.
From the Veterans Benefits Manual, Page 1167:
Ever since Gilbert, the Court and VASEC have been chipping away at this important right. We are now required to identify the magic moment and the seminal phrase or action that caused history to diverge into two different time streams. WGM’s was newer and more easily undone while it was still fresh at the RO. Mine had traveled to the BVA decades ago and been sustained. My DAV rep. forgot to tell me about the brand new court. Back then things were a little bit more informal…
Nothing much changed for years and years until Padgett v. Nicholson (Fed. Cir. 2007). The CAVC hung him out to dry on a strict reading of Gilbert and the Feds reversed-much in our favor. Again, the VBM:
As an aside, remember in my book that I advocate having several nexus letters when you play poker with the VA. Here’s a classic example of how much work they’ll go to to deny Mr. Padgett.
This, of course, was from the proctologist masquerading as an ortho doctor. It’s his CYA moment of saying “Not it.”
VA uses different standards to determine these CUE errors. In WGM’s case, the VA erred in a factual finding. They misread law to put him on the wrong side of the fence. In my case they did something similar. The high standard needed to prove it is a finding by the Court that it was clearly and unmistakably in error and to point out the error of law. This, on the other hand, is done not by an error of factual finding but by the clearly erroneous standard (the sum of all the evidence) . The whole weight of the evidence comes down in favor with nothing of any substance pointing to a pre-existing condition or any other obvious event post service that it can be ascribed to. The VA in 2013 have constructed a perfect foil for most new CUE claims. Like a trained dog, they have learned from their mistakes and rarely repeat them in public.
In my decision here, VA was on the ropes. This was less than a year after Congress created the COVA. Everything was in flux. Uncertainty ruled and the old way of adjudicating claims based on if you were a Senator’s relative or not were unsettled. Mistakes were made in public and just as quickly swept up and disposed of. How this could escape the C-file in 2009 and resurface in 2012 will remain one of those enduring mysteries of the file room. I call it Immaculate Reconception- it rose like the storied Phoenix from the ashes.
What this means is a new battle for CUE. I didn’t see this or argue it in my filings. I didn’t know about it. I guess this means dismissal without prejudice and another trip to the RO for a do over from scratch. Win or Die, right?
My favorite Amendment-Article #2
asknod
Bethanie Spangenberg
kcraveiro
robinhoodesqvetsatty
Wesley McCauley
